Some criminal statutes include such vague and even overbroad provisions as to render them unconstitutional. Consider, for instance, the vague and overbroad use of “lewdness” in the Virginia Code’s definition of a “bawdy place” in the criminal statute forbidding visiting and and keeping such a place: “‘bawdy place’ shall mean any building or structure which is used or is to be used for lewdness, assignation or prostitution.” Va. Code § 18.2-347.

Last week, the District of Columbia Circuit took the opportunity to review the federal criminal statute against making a “harangue or oration” in the United States Supreme Court, concerning a rather theatrical courtroom demonstration (though I disagree with demonstrating in a courtroom) against the Citizens United decision, which is a decision that I support, in that an opposite outcome would have severely damaged First Amendment rights. U.S. v. Bronstein, et al., ___ F.3d ___ (D.C. Cir. , March 3, 2017). Curiously, one of the demonstrator’s allies was able to sneak in a camera or camera phone to record the incident (shown here), when cameras are forbidden in the courtroom.

The trial court in Bronstein struck “harangue” and “oration” from the charged statute as being void for vagueness. However, the United States Court of Appeals reversed that vagueness finding. Following is a central theme that led to this reversal:

“At first blush, tension appears between a vagueness inquiry viewed from the vantage point of ‘ordinary people,’ and a vagueness analysis carried out with the standard tools of statutory interpretation. Yet this tension is assuaged by understanding what the doctrine means by ‘fair notice,’ ‘vagueness,’ and the vantage point of ‘ordinary people.'”

Bronstein further states, in relevant part, that “the use of ‘harangue’ and ‘oration’ within the statute comes into view; they refer to public speeches that tend to disrupt the Court’s operations, and no others.”

In any event, an essential part of every criminal defense is to review the applicable statutes for unconstitutional vagueness and overbreadth.